The Federal Court had unanimously rejected Munawar A Anees’ appeal because it agreed it had no jurisdiction to hear the revision and held the view that the appellant's non-presence during his appeal at the High Court was tantamount to an abuse of the court process.

The three-member panel led by Chief Justice Zaki Azmi rejected the appeal on Oct 30, but no grounds were given. The judgment was made available today.

The two other judges who sat with Zaki were Nik Hashim Nik Ab Rahman and Zulkefli Ahmad Makinuddin. Zulkefli wrote the 15-pa ge judgment which was adopted by the panel.

munawar anees interview 131106 dr anees 01 Munawar had appealed against his six-month jail conviction after he had pleaded guilty at the Sessions Court on Sept 19, 1998, for allowing Anwar Ibrahim to sodomise him at the latter's home in Jalan Setia Murni, Bukit Damansara, in March 1993.

The Pakistani-American was Anwar's former speech-writer.

Normally, with cases that originate from the subordinate courts, it would end at the Court of Appeal as the final point of appeal.

However, Munawar had applied for a revision at the apex court on the grounds of the Tan Sri Eric Chia vs Public Prosecutor case, where the Federal Court can hear applications for fear of a miscarriage of justice under rule 137 Rules of the Federal Court (RFC) in cases pertaining to criminal trial at the Sessions Court.

Apex court does not agree

Zulkefli however, contended the Federal Court could not agree with counsel Manjeet Singh Dhillon.

"We are of the view since the case of the applicant originated from the Sessions Court and the High Court had heard this case in its appellate capacity and not acting under its original jurisdiction.

The applicant had exhausted his rights of appeal at the Court of Appeal, it therefore follows that the Federal Court could not deal with this matter for want of jurisdiction as stipulated under section 87 of the Courts of Judicature Act 1964 (CJA)," said the judge.

He said in the absence of jurisdiction such as provided by section 87 of the CJA, rule 137 RFC being a procedural law, could not be invoked to confer jurisdiction to the Federal Court to review a case.

"It must be stated here however that the Federal Court had consistently emphasized that rule 137 could be invoked only in limited circumstances."

"We are therefore of the view on the issue of whether this Court has the jurisdiction to hear the applicant’s application, it is patently clear that there is no room to invoke rule 137 of RFC and on this ground alone the applicant’s application should be dismissed," Zulkefli said.

Absence in proceeding detrimental

Despite this, Zulkefli said the court had try to continue on hearing Manjeet's submission that even if the applicant was absent, the court can consider and appeal and to consider this appeal it must be done on its merits.

The judge said it could not agree with the submission made as after considering the High Court judge had written in his judgment that amongst others the High Court had to dismiss the appeal without hearing its merits.

Zulkefli said the learned judge was of the view that since the applicant had failed to appear personally in court for his appeal to be heard on several occasions, the hearing of the appeal had to be repeatedly postponed, this would be a ground to justify the dismissal of the applicant's appeal.

The Federal Court judge said the High Court judge discussed the resultant effect of the hearing of the applicant’s appeal in his absence and the powers vested in the court at the hearing of an appeal.

"The judge took into consideration of the fact that the applicant is out of jurisdiction (for being outside the country) and the court having the revisionary powers on appeal to impose a heavier sentence if the court finds the six (6) months imprisonment meted out on the applicant is manifestly inadequate even though the Public Prosecutor did not appeal against the sentence.

"It is for this reason that the judge concluded that it was incorrect for Munawar's counsel to contend that just because the applicant had gone through the trial process before the Sessions Court and had served his sentence that he did not have to appear."

Zulkefli said the High Court judge anticipated the possibility of enhancing the sentence passed on the applicant but the powers to enhance the sentence cannot be carried out in Munawar's absence as he has the right to be heard.

"To the court, the presence of the applicant at the hearing of the appeal is of paramount importance, but for his repeated absence it would be justified for the court to exercise its discretion to dismiss the appeal without considering its merits," said the judge.

Furthermore, Zulkefli said the High Court judge had reviewed the records of appeal and there was nothing to show that the proceedings before the Sessions Court was not in accordance with any procedure.

"For the reasons stated above, we are in agreement with the conclusion arrived by the High Court judge that to allow the hearing of the applicants appeal in his absence would tantamount to an abuse of the court process.

The judge was justified to use his discretionary power under section 313(2) of the Criminal Procedure Code, in refusing to consider the appeal an in dismissing the appeal. Following this, we dismiss the applicants aplication," said the judge.

Despite this decision, Munawar had filed for a revision at the Court of Appeal on Nov 25 over his conviction.

"I was advised to apply to the Court of Appeal to set right the injustice perpetrated against me for over a decade.

Unfortunately, my latest request for a review at the Federal Court was dismissed last month (and) no grounds were handed down," he was quoted to have said in a press conference.